Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks.. Summary

[2024] FWC 1213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

NSW Electricity Network Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust Trading as Transgrid

(B2024/524)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 9 MAY 2024

Proposed protected action ballot of employees of NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid (Transgrid or Employer).

On 8 May 2024, the Commission was advised that the Employer did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Matthew Murphy, Union Official, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Transgrid, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement and Voting Solutions (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 23 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR774677.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, ten (10) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order. The application was in relation to certain employees of NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid. The employer did not object to the application. The Commission was tasked with determining whether the requirements for a protected action ballot under section 437 of the Fair Work Act 2009 had been met.

The primary legal issue before the Commission was whether the CEPU had satisfied the conditions necessary to conduct a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement had been met. The Commission also had to determine the closing date for the ballot, in line with the statutory requirements.

The Deputy President of the Commission, Hampton, concluded that the CEPU had met all the requirements for the protected action ballot. The union had provided a declaration from a union official detailing the steps taken in bargaining with the employer and affirming the union's genuine efforts to reach an agreement. Vero Engagement and Voting Solutions, the approved ballot agent, was authorised to conduct the ballot. The Commission set the closing date for voting as 23 May 2024, effectively ten working days from the date of the order.

The Commission issued an order granting the ballot application and setting the closing date for the ballot. The matter will proceed to a compulsory conciliation conference under section 448A of the Act. Another member of the Commission will oversee the conference and issue necessary directions to ensure meaningful negotiations between the parties.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks..

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established